With the concurrence of both the learned counsel for the parties, this petition is to be treated as notice case and decided as such
2. This Writ Petition calls in question the order dated 6-4-2004 passed by learned Additional District Judge, Bahawalnagar-respondent No,1 dismissing the pre-emption suit of the petitioner for non- deposit of Zar-e-Soim as directed by the learned trial Court.
3. Succinctly the facts stated are that against the sale of a house measuring 2-Marla and 2-1/4 Sarsai situated in City Bahawalnagar through sale-deed dated 18-7-2003 in favour of respondent No,2 for an ostensible sale price of Rs,99,75,00, the petitioner filed a suit for preemption on 4-10- 2003 in the Court of learned Senior Civil Judge, Bahawalnagar. The learned Senior Civil Judge fixed the suit for 6-10-2003 for report of the Ahlmad and on 6-10-2003 on receipt of the said report passed by following order:- " 6-10-2003 . Present: Learned counsel for the plaintiff. The plaintiff has pre-empted the sale of a shop having market value amounting to Rs,9,97,500.
Hence, the court-fee amounting to Rs,15,000 be-filed by or before the date fixed. However, 'the Zar-e-Soim of Rs,3,32,500 be also deposited by or before the date fixed." On 9-10-2003 the learned Senior Civil Judge was on leave, hence the matter was adjourned to 13- 10-2003 on which date the following order was passed:- "13-10-2003. Present: Learned counsel for the plaintiff.
He states that inadvertently he has noted the date as 9-10-2003 when the undersigned was on leave. He requests for an adjournment as under law he has to pay the "Zar-e-Soim" within one month. Moreover due to misunderstanding he could not deposit the court-fee. This suit is at initial stage. Hence it will be in the interest of justice that the proper time be given to the party for submission of Zar-e-Soim and the court-fee. Hence the file to come up on 1-11-2003. Meanwhile, the plaintiff is directed to deposit the Zar-e-Soim to the tune of Rs,3,32,500 and the court-fee amounting to Rs,15,000, be or before the date fixed." The case was adjourned to 1-11-2003. As the petitioner had complied with the above mentioned order dated 13-10-2003 and in token thereof had placed on record of the suit, original challan showing deposit of Zar-e-Soim and had also furnished the stamp paper valuing Rs,15,000, the learned Senior Civil Judge, on 1-11-2003 directed that summons/notices be issued to the respondents for 1-12-2003. Dissatisfied with the above mentioned order of the learned trial Court dated 13-10-2003 allowing the petitioner/plaintiff to deposit the Zar-e-Soim till 1-11-2003, the respondent No,2 filed a revision petition in the Court of learned District Judge, Bahawalnagar who entrusted the same to a learned Additional District Judge and the learned Additional District Judge vide order dated 6-4-2004 while accepting the civil revision of the respondent/defendant set aside the order dated 13-10-2003 and proceeded to dismiss the suit of the petitioner in terms of section 24 of the Punjab Pre-Emption Act, 1991. Hence, this Writ Petition.
4. Following points, require determination in this Writ Petition:-
(i) Whether the period of thirty days provided in section 24 of the Punjab Pre-Emption Act, 1991 means that the amount of Zar-e Soim can be got deposited at any time within thirty days from the date of the institution of the suit or it confers power on the trial Court to order deposit of the Zar-e- Soim within the period shortest of thirty days;
(ii) Whether the said provision of section 24 of Punjab Pre-Emption Act, 1991 is mandatory or directory in nature;
(iii) Whether the trial Court can extend the time once fixed, shorter then thirty days within the period of thirty days; and
(iv) Whether it is the duty of the Court to fix the time for deposit of Zar-e-Soim or the plaintiff is obliged to deposit the said amount within thirty days even without any expressed order of the trial Court.
5. Learned counsel for the petitioner/plaintiff has argued that object of section 24 of the Punjab Pre-Emption Act, 1991 is neither nor can be to equip the Court to direct deposit of the amount by curtailing thirty days to two or three days, as was done by the trial Court in the present case. By placing reliance on the case of Ghulam Hassan v. Jamshaid Ali and others 2001 SCM R 1001, learned counsel has argued that in similar circumstances the learned trial Court directed deposit of Zar-e- Soim within two days of the order, the Hon'ble Supreme Court of Pakistan held the same as harsh exercise of jurisdiction. He has further argued that by providing a period of thirty days in section 24 of the Punjab Pre-Emption Act, 1991, the legislature never intended to trap the pre-emptor by inflicting penalty of dismissal of suit, if the pre-emptor fails to comply with such type of order directing him to deposit Zar-e-Soim within such a shortest time. In fact the span of thirty days means grant of reasonable time to the pre-emptor and such discretion should be exercised in a judicious manner and in accordance with provisions of law. Further contends that although the provisions of section 24 of Punjab Pre-Emption Act, 1991 are mandatory in nature entailing penalty for non-deposit of the Zar-e-Soim fixed by the Court, by way of dismissal of the suit yet such provision must be used to strike balance between the parties before the Court. The learned counsel while attacking the order of learned Additional District Judge has argued that the impugned order has been passed in a mechanical manner and in isolation to the provisions of law as contained in section 24 of the Punjab Pre-emption Act, 1991. He has next contended that the learned Additiorial District Judge in his impugned order has misconstrued the order dated 13-10-2003 as if the trial Court had granted extension of time to the petitioner/plaintiff in a mechanical manner, whereas the learned trial Court passed the said order after proper application of mind and also keeping in view the difficulty of the petitioner. It is argued that by passing the order dated 13-10-2003 the learned trial Court never extended the time but had in fact removed the wrong committed by the Court itself while passing the order dated 6-10-2003 fixing the date of two days for the deposit of Zar-e-Soim which was not only harsh but also not in consonance with the provisions of section 24 of Punjab Preemption Act, 1991. In 'support of his contentions, reliance has been placed on Jehandar Khan v. Muhammad Arif Khan 1991 M LD 2109; Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957 and Ch. Muhammad Yaqoob v. Nazim Hussain and others 1995 CLC 1271 to argue that the learned trial Court can extend the time once fixed for deposit of Zar-e-Soim to the maximum of thirty days and the findings of the learned Additional District Judge that time once fixed, hbwever shortest be, within period of thirty days, cannot be extended at all.
6. On the other hand, learned counsel for respondent No, 1/defendant besides supporting the order of the learned Additional District Judge has also placed reliance on Mst. Zulaikha Khatoon v. Ch. Muhammad. Yasin and 5 others 2004 CLC 1443; Rehman-ud-Din and another v. Sahibzada Jehanzeb 2004 SCM R 418; Qadir Bakhsh and 10 others v. Kh. Nizam ud Din and 4 others 1997 SCM R 1267; Wahid Bakhsh v. Abdul Qayum and another 1997 M LD 2945 and Muhammad Iqbal v. Wamiq Javaid, Learned Additional District Judge, Sargodha and 2 others 2001 YLR 739.
7. I have given my anxious consideration to the above mentioned arguments of both the learned counsel for the parties and perused the record with the assistance of both the learned counsel.
8. There is no cavil to the proposition that provision of section 24 of the Punjab Pre-emption Act, 1991 are mandatory entailing penalty of dismissal of suit in case of non compliance of order passed by the trial Court directing deposit of Zar-e-Soim but at the same time there can also be no second opinion that the period of thirty days provided in section 24 of the Punjab Pre-emption Act, 1991 is meant for facilitating the plaintiff/pre-emptor in the matter of deposit of Zar-e-Soim who has to make 1/3rd of the sale price available and to direct him to deposit the A amount either on the same day or on the next two, three, four, five days or so on, such exercise of power is neither reasonable nor in consonance with the intention of legislation. The law makers were fully aware of the consequences of such provision while provided a period of thirty days; otherwise, they could easily burden the plaintiff to deposit even the whole sale price while filing the suit. Hence, to say that period of thirty days may mean even a period of one day or the period of full thirty days, is nothing but making mockery of law and as held by the Hon'ble Supreme Court of Pakistan in the above said Judgment Ghulam Hassan v. Jamshaid Ali and others 2001 SCM R 1001, that such type of exercise of jurisdiction by the trial Court while passing an order under section 24 of the Punjab Pre- emption Act, 1991 would amount to inflicting penalty of dismissal of suit upon innocent litigant as the function of the Court is not to simply dispose of the matter but was also required to do justice in accordance with the provisions of law and not only causing financial loss to the party but also prolonging their agony spreading over decades in such an uncalled for litigation consuming much of the time of the superior Courts. Hence, the view of the learned Additional District Judge that it has not been mentioned and specified that Court cannot fix time less then thirty days for deposit of Zar-e-Soim, cannot be approved by any principles of interpretation of law.
9. The order of trial Court directing the plaintiff to deposit. Zar-eSoim is an act of the Court and it is an established principle of law that act of Court would not prejudice any party. Ghulam Hassan v.
Jamshaid Ali and others 2001 SCM R 1001 and Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957 are authorities to this effect and both the cited judgments are with reference to the act of the Court performed under section 24 of the Punjab Pre-emption Act, 1991. The judgment of the apex Court Ghulam Hassan v. Jamshaid Ali and others 2001 SCM R 1001 specially deals with the question arising out of fixation of three days time for deposit of Zar-e-Soim. The Hon'ble Supreme Court of Pakistan while declaring the said provision as mandatory, also held that the word "require" in said section means requiring the performance of or doing of certain act by the Court and while directing the compliance of such requirement, the Court should exercise its discretion judicially and not in an arbitrary manner. This Court in the case of Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957 also while dealing a case under section 24, of the Punjab Pre-emption Act besides holding that consequence of non deposit of the Zar-e-Soim is that such requirement being mandatory in nature and not directory, also held that Court was powerless to extend the time beyond thirty days of institution of the suit meaning thereby the Court can either extend the time within thirty days or can fix such period so as to avoid any penal consequences in the form of dismissal of suit in case of non deposit of Zar-e-Soim or noncompliance of requirement of the Court.
10. So far as authorities cited by the learned counsel for the respondent are concerned, these are distinguishable and have their peculiar features of their own. In Rehman ud Din, and another v.
Sahibzada Jehanzeb 2004 SCM R 418 is the judgment on North West Frontier Province Pre-emption Act, (X of 1987) and the pre-emptor besides having been given ten days time failed to deposit Zar- e-Soim and sought extension in time on the ground that in fact the due amount was got deposited by the Clerk of his counsel who by committing mischief deposited fake bank receipt and it was in this background that the Hon'ble Supreme Court refused to condone the extension of time on the ground that plaintiff was not vigilant in the prosecution of his case. Although the circumstances narrated Wahid Bakhsh v. Abdul Qayum and another 1997 M LD 2945 are similar to that of the present case yet the same are mainly based on interpretation of the section 148 C.P.C. Hence, the said judgment cannot be applied to the present case on all force. Similarly, Qadir Bakhsh and 10 others v. Kh. Nizam ud Din and 4 other 1997 SCM R 1267 is based on the provisions of Punjab Preemption Act, 1913 and have no application to the present case. Again in Mst. Zulikha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443 under AJ & K Right of Prior Purchase Act (1993 B.K) the plaintiff besides obtaining one month's time to deposit Zar-e Punjum (as is required under the said Act), failed to deposit the same and sought extension in time which extension was allowed after the expiry of original period of thirty days and the Hon'ble Supreme Court of AJ&K set-aside the order holding that trial Court had become functus officio after the expiry of stipulated period of one month and thereafter had no jurisdictional competence to pass order for extension of time, which is not the present case.
11. After the above mentioned analysis of factual and legal controversy and also going through the case law mentioned above, my answer to the points noted in para-4 above, is as under:-
(i) The trial Court while directing deposit of Zar-e-Soim under section 24 of the Punjab Pre-emption Act although is not bound to allow maximum period of thirty days to the plaintiff yet at the same time, the period fixed for the said purpose must be reasonable and should not manifest any harshness on the part of the Court and for this purpose reasonable time within the period of thirty days be fixed and what is reasonable is a question of fact which varies from case to case, especially keeping in view the quantum of amount to be got deposited by the plaintiff as Zar-e- Soim;
(ii) The provision of section 24 of the Punjab Pre-emption Act, 1991 is mandatory in nature, as it entails consequences of penalty of dismissal of the suit in case of failure to comply with the order of the Court, yet as held by the Hon'ble Supreme Court in Ghulam Hassan v. Jamshaid Ali and others 2001 SCM R 1001 the Court should act in a judicious manner while seeking compliance of requirements of section 24 of the Punjab Preemption Act, 1991 and such provisions should not be used in a manner causing not only financial loss to the parties but also prolonging their agony spreading over a period of decades in such uncalled for litigation;
(iii) The Court can extend the period once fixed under section 24 of Punjab Pre-emption Act, 1991 in case involving hardship but within period of thirty days from the date of institution of the suit and not beyond thirty days because thereafter, the penalty of dismissal of the suit is automatic, hence, Court becomes functus officio; and
(iv) Since the provisions of section 24 of the Punjab Pre-emption Act, 1991 are mandatory in nature, it therefore, becomes duty of the trial Court not only to fix definite and reasonable period for deposit of Zar-e-Soim within the period of thirty days but also specify the amount to be deposited by the plaintiff within the said period, in order to avoid any misunderstanding on the part of the plaintiff about the specific amount of Zar-e-Soim to be deposited by him.
12. The upshot of above discussion is that, this Writ Petition is allowed, the order dated 6-4-2004 passed by learned Additional District Judge, Bahawalnagar in revisional jurisdiction, is set aside as having been passed without lawful authority, with the result the order of the learned trial Court dated 13-10-2003 is restored and the suit filed by the petitioner shall be deemed to be pending before the trial Court which will proceed with the trial of the suit as it was pending on 1-11-2003. The parties are however, left to bear their own costs.